At
a general
court-martial composed of a military judge sitting alone, Appellant was
convicted, pursuant to his pleas, of two specifications of indecent
acts with a
child under the age of sixteen, in violation of Article 134, Uniform
Code of
Military Justice (UCMJ), 10 U.S.C. § 934 (2000).He
was sentenced to a bad-conduct discharge,
confinement for twelve months, and reduction to pay grade E-1.Pursuant to a pretrial agreement, the
convening authority suspended all confinement in excess of 270 days.The United States Navy-Marine Corps Court of
Criminal Appeals, sitting en banc, affirmed the findings and sentence.United States v. Fischer, 60 M.J. 650 (N-M. Ct. Crim.
App. 2004).

On
Appellant’s
petition, we granted review of the following issue:

WHETHER
APPELLANT WAS SUBJECTED TO
ILLEGAL PRETRIAL PUNISHMENT AND DENIED DUE PROCESS OF LAW WHEN HIS PAY
WAS
STOPPED WHILE HE WAS IN PRETRIAL CONFINEMENT AFTER THE END OF HIS
OBLIGATED
SERVICE.

For the reasons set
forth below, we
affirm the decision of the Navy-Marine Corps Court of Criminal Appeals.

I.
BACKGROUND

A.
PRETRIAL AND TRIAL PROCEEDINGS

Under
Appellant’s
enlistment contract, his period of obligated service ended on June 29, 2001.Eight weeks earlier, on May 4, Appellant was
placed in pretrial confinement for various sexual offenses with minor
females.In recommending pretrial
confinement, Appellant’s commander explained that he considered
Appellant a
flight risk because of his upcoming end of obligated service (EAS)
date, June
29.

Appellant
was
still in pretrial confinement on June 29.Under applicable military pay regulations, discussed infra,
the
Government terminated his entitlement to military pay and allowances.On July 11, defense counsel notified the DepotConsolidatedAdministrativeCenter that Appellant’s pay
had
been stopped.Initially, defense counsel
was informed that Appellant’s pay would be reinstated.Later, the Government advised defense counsel
that Department of Defense (DoD) regulations
prohibited reinstatement of Appellant’s pay because he had reached his
EAS date
and was in pretrial confinement.

Appellant
was
convicted and sentenced on August
9, 2001.Appellant was paid for
the period of pretrial confinement before his EAS, but he was not paid
for the
forty-one days of pretrial confinement that he served after his EAS.On appeal, Appellant argues that the
termination of his pay amounted to illegal pretrial punishment in
violation of
Article 13, UCMJ, 10 U.S.C. § 813 (2000).

B.
PAY REGULATIONS

By
statute, servicemembers who are on active duty are
entitled to the basic pay of the pay grade to which they are assigned.37 U.S.C. § 204(a)(1);
seeBell
v. United States,
366 U.S.
393, 401 (1961) (a soldier’s entitlement to pay is statutory, not
contractual).The Department of Defense
Financial Management Regulations (DoD FMR) provide
implementing rules concerning the obligation to pay servicemembers.SeePaalan v. United
States, 51 Fed. Cl. 738, 745
(2002).In the course of determining
that Appellant’s pay could not be reinstated, the DepotConsolidatedAdministrativeCenter relied upon DoD FMR,
vol.
7A, ch. 1, subpara. 010302.G.4 (2005),1
which provides: “If a member is
confined awaiting
court-martial trial when the enlistment expires, pay and allowances end
on the
date the enlistment expires.If the
member is acquitted when tried, pay and allowances accrue until
discharge.”

The
regulation is consistent with decisions of the Comptroller General of
the United States,2 the United States Court of Federal Claims, and the United
States Court of Appeals for the Federal Circuit.Well before the enactment
of the UCMJ, the Comptroller General determined that a soldier who
reached EAS
while in pretrial confinement, and who was later convicted, was not
entitled to
be paid subsequent to the EAS while in pretrial confinement.E.g., Comptroller
General McCarl to Maj. E. C. Morton, United States Army, 11 Comp. Gen.
342 (1932).In a 1937 decision, the Comptroller General
stated:

An enlisted man of the Navy held for trial
or for sentence by court martial after expiration of enlistment is
being held
to await the completion of criminal proceedings against him under
authority of
the Articles for the Government of the Navy.He is no more entitled to pay when so held after expiration of
his
enlistment than is a civilian who is being held for trial on a criminal
offense
by the civil authorities, and the fact that the issuance of his
discharge is
delayed pending the conclusion of the proceedings gives him no right to
pay
beyond the period for which he contracted to serve.The period of retention for criminal
proceedings is no part of the enlistment contract and the obligation of
the
Government . . . is to pay him for the period for which he contracted
to serve,
not to pay him for any period he may be held on criminal charges after
expiration
of enlistment, any more than it would be obligated to pay him after his
enlistment had expired if he were convicted and sentenced to
imprisonment.

Acting Comptroller
General Elliot to the Secretary of the Navy, 17 Comp. Gen. 103 (1937),
U.S. Comp.
Gen. LEXIS 271, at *6-*7 (1937).

In
1951, shortly before the UCMJ took
effect, the Comptroller General ruled that the pre-UCMJ prohibition
against
pretrial punishment3
did not require payment of pretrial confinees held beyond their EAS
date:

[T]he said provisions do not require any
change in the rule that the pay and allowances of an enlisted person
whose term
of enlistment expires while he is in confinement, awaiting trial by
court
martial, terminate on the date of the expiration of his term of
enlistment
unless he is acquitted, in which event pay and allowances accrue until
he is
discharged.

In
suits brought by pretrial confinees who
reached their EAS while in pretrial confinement against the Government
for pay
and allowances for the time in pretrial confinement past their EAS, the
United
States Court of Federal Claims and its predecessor court have followed
the
reasoning of the Comptroller General’s decisions, holding that “[w]hen
an
enlisted person is in confinement awaiting trial at the time his term
of
enlistment expires, his pay and allowances terminate on the date his
enlistment
expires unless he is subsequently acquitted.”Moses v. United States, 137 Ct. Cl. 374, 380 (1957); see
alsoSingleton
v. United States,
54 Fed. Cl. 689, 692
(2002).But cf.Rhoades
v. United States, 229 Ct. Cl. 282 (1982); Dickenson v. United
States,
163 Ct. Cl. 512 (1963) (distinguishing the facts and holding that the
Comptroller General’s rule did not apply under the circumstances of the
cases).

According
to the United States Court of
Appeals for the Federal Circuit, the authority for the military to hold
an enlistee
in service after EAS without pay pending court-martial unless there is
an
acquittal constitutes a “settled rule of law.”Simoy v. United
States,
64 F.App’x 745, 746 (Fed. Cir. 2003); see
alsoAnderson v. United States, 70 F.App’x 572, 575 (Fed. Cir.
2003); Dock v. United States, 46 F.3d 1083 (Fed.Cir.
1995).

C.ARTICLE 13

Appellant
contends
that DoD FMR 010302.G.4, which was the basis for terminating his pay
after he
reached his EAS while in pretrial confinement, violated the Article 13,
UCMJ, right
to be free from illegal pretrial punishment.Article 13 provides: “No person, while being held for trial, may
be
subjected to punishment or penalty other than arrest or confinement
upon the
charges pending against him.”We have
interpreted Article 13 to prohibit two types of activities: (1) the
intentional
imposition of punishment on an accused prior to trial, i.e., illegal
pretrial
punishment; and (2) pretrial confinement conditions that are more
rigorous than
necessary to ensure the accused’s presence at trial, i.e., illegal
pretrial
confinement.SeeUnited States v. Inong, 58 M.J. 460, 463 (C.A.A.F. 2003); United States v. McCarthy,
47 M.J. 162, 165 (C.A.A.F. 1997).

Appellant
focuses
his argument on the illegal pretrial punishment prong of Article 13.A violation of this prong “entails a purpose
or intent to punish an accused before guilt or innocence has been
adjudicated.”McCarthy, 47 M.J. at 165.We
apply this standard by examining the
intent of detention
officials or by examining whether the purposes served by the
restriction or
condition are “reasonably related to a legitimate governmental
objective.”United States v. King,
61 M.J. 225,
227 (C.A.A.F. 2005) (citing Bell v. Wolfish, 441 U.S.
520, 539 (1979);McCarthy, 47 M.J. at 165).

The
question of
whether Appellant is entitled to credit for an Article 13 violation is
reviewed
de novo.United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002).It is a mixed question of law and fact, and
the military judge’s findings of fact will not be overturned unless
they are
clearly erroneous.Id.Appellant bears the burden of proof to
establish a violation of Article 13.Id.

II.
DISCUSSION

Appellant
does not
dispute the lower court’s finding that neither Appellant’s jailors nor
his
chain of command intended to punish Appellant by stopping his pay.Instead, Appellant asks this Court to find
that the termination of Appellant’s pay, in accordance with DoD FMR
010302.G.4,
amounted to illegal pretrial punishment because it operated as
punishment imposed
before trial.

A.
REGULATORY PURPOSE

Appellant
contends
that the implicit purpose of DoD FMR 010302.G.4 is to punish.Appellant interprets DoD FMR 010302.G.4 as
denying pay only to those who are guilty, citing the provision that
those who
are held in pretrial confinement past their EAS and later acquitted are
reimbursed for the time held without pay.The Department of Defense regulations, however, are not so
narrow.

A
servicemember’s
pay is not terminated just because the servicemember is placed in
pretrial
confinement.DoD FMR 010302.F.1 states
that pay and allowances accrue to members in military confinement
unless: (a)
confined by military authorities on behalf of civil authorities; (b)
pay and
allowances are forfeited by court-martial sentence; or (c) the term of
enlistment expires.A servicemember who
is confined before trial is entitled to “receive pay until the end of
his
enlistment contract, regardless of the ultimate disposition of the
case.”Paalan, 51 Fed. Cl. at
745.If a pretrial confinee does
not reach EAS until after the adjudication of the case, the pretrial
confinee
is entitled to pay and allowances for the time held in pretrial
confinement,
regardless of whether the individual was found guilty or not guilty.

Moreover,
every
servicemember’s entitlement to pay is terminated at EAS.SeeSimoy v. United
States, 64 F.App’x 745, 747 (Fed.
Cir.
2003) (“a service member’s entitlement
to pay ceases when his
enlistment expires”); Matter of: Courts-martial Sentences-Records Lost
Before
Appellate Review-Appellate Leave Benefits, 1996 U.S.
Comp. Gen. LEXIS 442, at *4-*5 (1996) (“It isa
well settled rule that no credit for pay and allowances accrues to a
court-martialed enlisted member during periods after the expiration of
his term
of enlistment . . . .”). Although
Appellant characterizes the regulations as “terminat[ing] a
serviceman’s pay
and allowances at the end of his enlistment if the serviceman is in
pre-trial
confinement,” there is no distinction between a servicemember in
pretrial confinement
and one in any other status.All
servicemembers lose their entitlement to pay and allowances upon
expiration of
their enlistment contract.

A
servicemember
may be paid after an enlistment expires in two situations.First, a servicemember who remains in the
service and performs productive work may be paid.SeeUnited States
v. Shattuck, 1989 CMR
Lexis 187, at *5 (A.F.C.M.R. 1989); DoD FMR
010302.G.1.Standard confinement duties,
however, are not
considered active-duty work that would entitle a pretrial confinee held
past
EAS to payment.SeeDoD FMR 010302.G.1; Combs v. United States, 50 Fed. Cl. 592, 594 n.2 (2001);
Shattuck, 1989 CMR Lexis 187, at *5.The second situation is the focus of
Appellant’s concern.If a servicemember
held in pretrial confinement past EAS is later acquitted, the
servicemember is
retroactively paid for the time spent in pretrial confinement past the
EAS
date.SeeDoD
FMR 010302.G.4.Appellant assumes that
because one group of pretrial confinees (the group that is later
acquitted) is
reimbursed, then the other group (the group that is later convicted) is
being
punished.This argument takes too
limited a view of the regulations.Acquittal provides a rational, objective basis for reimbursement.The Government’s policy of retroactively
paying persons held past their EAS when a charge has not been sustained
at
trial does not signify an intent to punish
the other
group.In civilian criminal cases, for
example, the Government may be liable for reasonable attorney’s fees
and
litigation expenses to a prevailing defendant if the Government
position was
“vexatious, frivolous, or in bad faith.”Hyde Amendment, Pub. L. No. 105-119, tit. VI, § 617, 111 Stat.
2440,
2519 (codified in statutory notes at 18 U.S.C. § 3006A (2000)).Although more limited than the reimbursement
provision of DoD FMR 010302.G.4, the Hyde Amendment reflects a policy
to
compensate specific individuals because of a flaw in their prosecution.It is not a policy designed to punish those
who are not compensated.Likewise, we
should not assume that the compensatory provisions of the military pay
regulations reflect an implicit intent to punish an individual in
Appellant’s
situation.

We
note Appellant
does not allege that he was held in pretrial confinement without due
process.Appellant was placed in
pretrial confinement in accordance with Rule for Courts-Martial 305,
which
contains specific standards and detailed requirements for notice and an
opportunity to respond.Following the
determination that he should be held in pretrial confinement,
Appellant’s pay
was terminated in accordance with a neutral criterion, his EAS.

Appellant
does not
claim before this Court that the termination of his pay violated the
Thirteenth
Amendment’s prohibition against involuntary servitude or that there is
a
constitutional right to be paid while in pretrial confinement.In that regard, we note that federal civilian
employees may be suspended without pay upon an indictment, regardless
of
whether there is pretrial confinement.See
5 U.S.C. § 7513(b) (2000).As the
Federal Circuit explained:

[A]n
indictment . . . will, as a general rule, provide reasonable cause for
an
agency to believe that the employee has committed such a crime, and,
when the
nature of the crime alleged relates to the employee's ability to
perform his or
her duties, an agency may summarily suspend the employee, without pay,
pending
the outcome of the criminal proceedings.

Richardson
v. United States
Customs Serv., 47 F.3d 415,
419 (Fed. Cir. 1995).By
contrast,
the pay of military personnel is not terminated upon the filing or
referral or
charges, nor is it terminated upon pretrial confinement.The fact that pay is terminated only when
pretrial confinement is combined with a neutral criterion, the
expiration of
the term of service, underscores the non-punitive nature of the policy.When the Government selects one among
many available objective criteria for terminating pay, the fact that
other
criteria could have been used does not demonstrate that the selected
point
fails to serve a legitimate Government objective.Like the indictment date,
the EAS date is a rational, objective point for termination of pay, and
it is reasonably
related to the legitimate Government objective of not paying people who
are not
performing duties.

B.
REGULATORY EFFECT

Appellant
next
argues that even if the regulation is not implicitly punitive, the
policy is
punitive in effect under the factors set out by the Supreme Court in Kennedy
v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).In Mendoza-Martinez, the Court set
forth the following seven factors for use in determining whether an Act
of
Congress is punitive or regulatory in nature: (1) whether the sanction
involves
an affirmative disability or restraint; (2) whether it has historically
been
regarded as punishment; (3) whether it comes into play only on a
finding of
scienter; (4) whether its operation promotes retribution and deterrence
-- the
traditional aims of punishment; (5) whether the behavior to which it
applies is
already a crime; (6) whether an alternative purpose to which it may
rationally
be connected is assignable for it; and (7) whether it appears excessive
in
relation to the alternative purpose assigned.372 U.S.
at 168-69; seeFischer, 60 M.J. at 656-58 (Villemez,
J.,
dissenting).

Our
Court has not
previously applied the Mendoza-Martinez factors in the context
of
conducting a review under Article 13.Assuming, without deciding, that the Mendoza-Martinez
factors are
applicable to Article 13, these factors do not support a finding that
DoD FMR
010302.G.4 is punitive.

1. Affirmative
Disability or
Restraint

We
first take into
account whether DoD FMR 010302.G.4 imposes an affirmative disability or
restraint.SeeMendoza-Martinez,
372 U.S.
at
168.DoD FMR 010302.G.4 provides for the
termination of pay for an individual in Appellant’s situation.Although termination of pay at EAS could be
viewed as a disability, it is difficult to characterize this as an
affirmative
disability because Appellant, and those in his position, are
not entitled to be paid.See Yates; Shattuck, 1989 CMR LEXIS 187, at *4-*5.

2. Historic
Perspective

The
next factor considers the historical perspective on the consequence of
the
regulation.Mendoza-Martinez,
372 U.S. at 168.Appellant
points out that “[f]orfeiture of pay has long been regarded as
punishment.”In the present case, there
has been no forfeiture of pay.Where
Appellant was not entitled to payment, nothing could have been
forfeited.

As
previously discussed, the pay of all servicemembers is terminated when
they
reach EAS.Consciousness of guilt is not
a factor in determining whether to implement the regulation, so the
regulation
has no role in a finding of scienter.

4. Retribution and
Deterrence

The
fourth factor
considers whether DoD FMR 010302.G.4 promotes the traditional aims of
punishment -– retribution and deterrence.Mendoza-Martinez, 372 U.S. at
168.Appellant argues that “it is
difficult to imagine a better form of retribution and deterrence.” The policy, however, is not aimed at all who
are accused of a crime and held in pretrial confinement, but only
applies if a
neutral event occurs -- the person’s EAS date.

5. Application to
Criminal
Behavior

The
fifth factor requires an evaluation as to whether the policy is invoked
as a
result of behavior that is already a crime.Mendoza-Martinez, 372 U.S. at
168.Appellant argues that this
factor is met because the relevant FMR provisions would not have been
triggered
if there was no probable cause to believe Appellant violated the UCMJ.However, the behavior to which DoD FMR
010302.G applies is reaching the end of an enlistment contract, which
is not a
crime.

As
noted above, a servicemember does not lose entitlement to pay by virtue
of
being in pretrial confinement.The
deciding factor is whether the servicemember has reached EAS, not
whether there
is probable cause to believe the individual violated the UCMJ.SeeDoD FMR
010302.G.4.

6. Alternative
Purpose

The
sixth factor
considers whether there is a non-punitive purpose to the regulation.Mendoza-Martinez,
372
U.S. at 168-69.Here,
Appellant reiterates his argument that the stated purpose of the FMR is
pretext, specifically noting that DoD FMR 010302.G.4 returns pay and
allowances
to servicemembers in Appellant’s position who are subsequently
acquitted.

However,
there is
an alternative, non-punitive purpose of DoD FMR 010302.G.4.The alternative purpose is that a
servicemember held in pretrial confinement who has passed EAS and who
is not
providing productive service is not entitled to pay and allowances.As discussed above, EAS is a neutral,
non-punitive point in time which is reasonably related to the
legitimate
governmental interest in terminating the pay of persons who are not
performing
productive service.

7. Excessiveness

The
final factor considers whether the regulation is excessive in relation
to the
alternative purpose assigned to it.Mendoza-Martinez, 372 U.S. at
169.Appellant argues that the
FMR inflicts an excessive toll.We
disagree.In civilian life, pretrial
confinees may lose their jobs and are often not compensated for the
time spent
in pretrial confinement.The military’s
policy to reimburse pretrial confinees who were mistakenly held is more
generous than the Hyde Amendment, discussed above, that applies in
civilian
criminal cases.Although Appellant may
undergo personal financial loss because of the policy reflected in the
regulations, the termination of pay upon the expiration of the
enlistment
contract does not signify that the policy is excessive.

III.
CONCLUSION

As
Appellant conceded, the brig authorities in this case had no intent to
punish
Appellant.The regulation is not
implicitly punitive or punitive in effect.There is a legitimate, non-punitive reason behind the regulation.The application of the policy was reasonable,
given that Appellant reached his EAS and did not perform productive
services.Under an Article 13 claim, we
look to whether there was intent to punish or a punitive effect.If Appellant takes issue with the propriety
of the underlying decisions as a matter of fiscal law, he must pursue
that
issue before the United States Court of Federal Claims.

As
a final matter,
Appellant also maintains that his Fifth Amendment rights were violated
because
he was punished by virtue of the application of DoD FMR 010302.G.4
without due
process of law.In view of our
conclusion that the regulation has a legitimate non-punitive purpose,
there is
no punishment at issue in this case.Moreover, as explained above, there was no forfeiture in this
case
because Appellant had no entitlement to pay and allowances.

IV.
DECISION

The
decision of the United States Navy-Marine Corps Court of Criminal
Appeals is
affirmed.

FOOTNOTES:

1
The DepotConsolidatedAdministrativeCenter
cited DoD FMR, vol. 7A, ch.
3, subpara. 030207.D.This provision is identical to DoD
subpara.
010302.G.4, the only difference being that
subpara.
030207 appears in Chapter 3, which is entitled “Special Pays --
Officers Only”
as opposed to Chapter 1, which is entitled “Basic Pay.”Though subpara. 030207 was
cited by the DepotConsolidatedAdministrativeCenter,
Appellant’s brief refers to subpara. 010302,
and the
Government’s brief refers to subpara. 030207.For consistency, our discussion will cite to subpara. 010302,
but the
analysis would be no different for subpara. 030207.

2The Comptroller General is the
head
of the Government Accountability Office (GAO), formerly known as the
General
Accounting Office.See GAO Human
Capital Reform Act of 2004, Pub. L. No. 108-271,
118 Stat.
811 (2004).The GAO is an
independent, nonpartisan agency in the legislative branch that reports
to
Congress on the activities of executive branch agencies.Frederick M. Kaiser, General Accounting Office
and Comptroller General: A Brief Overview,inMajor
Studies and Issue Briefs of the Congressional Research Service
(2000); Frederick C. Mosher, The GAO:
The Quest for Accountability in American Government 2-3 (1979).A primary duty of the Comptroller General
involves issuance of opinions on behalf of the legislative branch
interpreting
legislation and determining the legality of financial transactions.See Mosher, supra at 205-06.

3 “[N]or shall
any defendant awaiting trial be made subject to punishment or penalties
other
than confinement prior to sentence on charges against him.”Article of War 16, Manual for Courts-Martial, U.S. Army (MCM)
(1949 ed.), App. 1.“[N]or shall any accused who is confined while awaiting
trial be
made subject to punishments or penalties other than confinement for any
offense
with which he stands charged prior to execution of an approved sentence
on
charges against him . . . and they will not forfeit pay or allowances
during
the period of confinement except pursuant to sentences ordered
executed.”MCM
(1949 ed.), ¶
19a.

ERDMANN,
Judge, with whom GIERKE, Chief Judge, joins (dissenting):

The majority opinion
finds that terminating the pay of a servicemember in pretrial
confinement,
whose term of service has been involuntarily extended by the
Government, does
not constitute illegal pretrial punishment under Article 13, Uniform
Code of
Military Justice (UCMJ), 10 U.S.C. § 813 (2000).I
would hold that the regulation requiring
the termination of pay under those circumstances is punitive in effect
and its
application constitutes illegal pretrial punishment.

Fischer was placed in pretrial
confinement on May 4, 2001.His enlistment expired on June 29, 2001.Rather than discharging him from military service at the end of
his
enlistment and thereby losing jurisdiction over him, the Marine Corps
understandably extended his active duty status pending court-martial.1Fischer remained in
confinement and his pay and allowances were terminated.When Fischer asked for his pay to be
reinstated, the Government responded that it was prohibited from paying
him
under Department of Defense (DoD)
regulations.

One of the basic
guarantees under the Due Process Clause is that a pretrial detainee
cannot be
punished until there is a finding of guilt.Bell v. Wolfish,
441 U.S. 520, 533 (1979).Article 13 of the UCMJ, which prohibits
pretrial
punishment, has its roots in this constitutional guarantee.Servicemembers who are accused of crimes can
be placed in pretrial confinement to ensure that they will appear at
trial and
to prevent further misconduct.Rule for
Courts-Martial (R.C.M.) 305(h)(2)(B).When placed in pretrial confinement, Article
13 protects them from conditions that constitute punishment, penalty or
excess.In this case we are called on to
determine whether terminating the pay and allowances of a
servicemember, who is
in pretrial confinement and whose enlistment has been involuntarily
extended,
constitutes punishment under Article 13.

4.Confined
Awaiting Trial by Court-Martial.If
a member is confined awaiting court-martial trial when the enlistment
expires,
pay and allowances end on the date the enlistment expires.If the member is acquitted when tried, pay
and allowances accrue until discharge.

The majority focuses
on the fiscal implications of the regulation and relies, in part, on
opinions
of the Comptroller General and Court of Claims.While these opinions are interesting both from a fiscal and a
historical
perspective, they do not provide any binding authority for this court
as they
do not interpret Article 13 or the cases from this court or the U.S.
Supreme
Court dealing with illegal pretrial punishment.Nor do those opinions consider the “status” based nature of
court-martial jurisdiction under the UCMJ.It is the primary duty of this court to provide such
interpretations.

I have no quarrel with
the majority’s finding that a servicemember’s entitlement to pay is
terminated
when his or her enlistment expires.That, however, is simply not the situation in this case.One of the mandatory factors underlying
court-martial jurisdiction is that the person to be tried must be
subject to
the UCMJ.In other words, the person
must be in a “status” in which he or she is a “person[]
. . . subject to” the UCMJ.See Article 2(a), UCMJ, 10 U.S.C. § 802(a) (2000).Article 3(a), UCMJ, 10 U.S.C. § 803(a)
(2000), makes it clear that personal jurisdiction is “status based”
under the
UCMJ:“. . . a person who is in a status
in which the person is subject to this chapter . . . .”Emphasis added.Holding Fischer
beyond his term of service
continued his status as a “servicemember on active duty” through
disposition of
the charges against him.R.C.M. 202(c)(1).

As I read the majority
opinion, once a servicemember’s term of enlistment is involuntarily
extended,
the obligation to provide pay and allowances is extended as well except
in the event that the servicemember is in pretrial confinement.The result of this view is that the
Government can, solely for its own purposes, imprison a presumptively
innocent
individual, unilaterally continue military status with all its
obligations and
duties and at the same time take away one of the basic rights
associated with
active duty military status -– the right to pay.3I cannot join the
majority’s view that these circumstances do not constitute a violation
of
Article 13.

As the majority notes,
this court has not previously applied the criteria of Kennedy v.
Mendoza-Martinez, 372 U.S.
144, 168 (1963), in order to
determine whether conditions of pretrial confinement violate Article 13.Were I to apply those factors, I would
disagree with the conclusion reached by the majority that the
regulation at
issue is not punitive in effect.However, I do not believe that such an analysis is necessary.In my view, this court’s Article 13
jurisprudence provides a proper framework for determining whether
Fischer was
subject to unlawful pretrial punishment.

Article 13 prohibits
two types of activity:(1) the
intentional imposition of punishment on an accused prior to trial; and
(2)
pretrial confinement conditions that are more rigorous than necessary
to ensure
the accused’s presence at trial.United States v. Inong,
58 M.J. 460, 463 (C.A.A.F. 2003); United States v. McCarthy,
47 M.J. 162, 165 (C.A.A.F. 1997).The first prong prohibits a purpose or intent to punish,
determined by
examining the intent of detention officials or by examining the
purposes served
by the restriction or condition, and whether such purposes are
“reasonably
related to a legitimate governmental objective. . . .” Bell, 441 U.S.
at 539; McCarthy, 47 M.J. at 165.The
second prevents unduly rigorous circumstances during pretrial detention.Conditions that are sufficiently egregious
may give rise to a permissive inference that an accused is being
punished, or
the conditions may be so excessive as to constitute punishment.Id.; United States v. James,
28 M.J. 214, 216 (C.M.A. 1989).A determination of whether Fischer is entitled to relief for
unlawful
pretrial punishment involves independent, de novo review.United States v. Smith, 53 M.J. 168,
170 (C.A.A.F. 2000); McCarthy, 47 M.J. at 165; seeThompson
v.
Keohane, 516 U.S. 99, 113 (1995).

Fischer’s active duty
military status was extended in virtually every respect save one -– he
was no
longer paid.The sole reason that his
pay was stopped, as opposed toother servicemembers extended on
active duty, was that he was in pretrial confinement.Fischer was in pretrial confinement because
both his Commanding Officer and the Initial Review Officer found that
he
constituted a flight risk and a threat to commit serious misconduct.I find no reasonable relation to a legitimate
government objective served by terminating an active duty
servicemember’s pay
and allowances because he or she is in pretrial confinement.Since Fischer’s pay would not have been
terminated except for the pretrial confinement, its effect on Fischer
is
obviously punitive.

The regulation’s objective, as
characterized by the majority, is that servicemembers held in pretrial
confinement are not considered to be performing “active duty work” and
therefore should not be entitled to pay.This logic breaks down, however,
because a
servicemember who is later acquitted has performed the same duties
while in
pretrial confinement and receives compensation. Servicemembers
in pretrial confinement are not
automatically excused from performing useful duties.Military appellate case law is replete with
cases discussing various duties performed by pretrial confinees.See, e.g., United
States v. Nelson, 18 C.M.A. 177, 178-79, 39 C.M.R. 177, 178-79
(1969); United
States v. Palmiter, 20 M.J. 90, 94 (C.M.A. 1985); United States
v.
Dvonch, 44 M.J. 531, 533 (A.F. Ct. Crim. App. 1996).Similarly, an active duty servicemember in
pretrial confinement who has not been involuntarily extended performs
those
same duties and receives his or her pay and allowances.

Forfeiting pay traditionally has
been regarded as a form of punishment in the military services.See generallyUnited States v.
Stebbins, 61 M.J. ___, ___ (11-18) (C.A.A.F. 2005). This
regulation imposes a
forfeiture upon a servicemember in the absence of any due
process or
adjudication of guilt.The effect of
this action as punishment is illustrated by how the forfeiture is
linked to the
results of trial.If a servicemember in
Fischer’s situation is acquitted, he or she is paid retroactively.4But if that person is
convicted, there is no pay adjustment.While the initial termination of pay was based solely on
Fischer’s
pretrial confinement status, the ultimate termination of his pay in
this
situation is based solely on a finding of guilt.This
is punishment.

The nexus between the
permanent termination of pay and a finding of guilt raises an
additional
concern which I believe further highlights the unlawful nature of this
deprivation.Congress has delegated to
the President the authority to establish maximum punishments.Article 56, UCMJ, 10
U.S.C.
§ 856 (2000).Under the Rules for
Courts-Martial, the President has directed that the only authorized
punishment
involving a loss of pay is a forfeiture of pay to be accrued.See R.C.M. 1003(b)(2)
and discussion.Additionally, execution
of any punishment to forfeit pay is effective and executed only after
trial.See
Article 57, UCMJ, 10 U.S.C. § 857 (2000).Tying
the deprivation of Fischer’s pay to his
conviction creates a punishment beyond that authorized by the UCMJ and
the Manual
for Courts-Martial, United States (2002 ed.).

There
is no legitimate governmental objective in DoD FMR 010302.G.4 that
outweighs
its clear punitive effect, and the regulation therefore constitutes
illegal
pretrial punishment in violation of Article 13.I would hold that the regulation is unenforceable and Fischer is
entitled to his full pay and allowances for the period in question.I therefore dissent.

FOOTNOTES:

1 Rule for Courts-Martial 202(c)(1) provides that a servicemember whose
enlistment has
expired may be “held on active duty.”Marine
Corps Manual for Legal Administration § 1005 (31 Aug 99), details this involuntary
extension of active duty and requires that proper administrative action
be
taken to effectuate the extension.While
the record in this case contains references to the fact that Fischer’s
active
duty was extended, it contains no references to the administrative
action
effectuating the extension.

2The May 2005
version of subpara. 010302.G.4 is
identical to
provisions that were in effect during Fischer’s pretrial confinement.See Department of Defense Financial
Management Regulation, vol. 7A, ch. 3, 030207.D (Feb. 2000).

3 37 U.S.C. §
204(a)(1)
(2000) provides that members of a uniformed service on active duty are
entitled
to pay.

4 The
majority’s conclusion that this
payment is akin to compensation for the accused when the charge has not
been
sustained at trial creates a dangerous precedent.An
acquittal in a criminal action does not
mean that the Government was wrong in bringing the charges, nor should
an
acquittal entitle an accused to compensation.It merely means that the court-martial did not find the accused
guilty
beyond a reasonable doubt.